Himachal Pradesh High Court

Urmila Devi vs Unknown on 24 August, 2021

Bench: Anoop Chitkara

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 24th DAY OF AUGUST, 2021

.
BEFORE

HON'BLE MR. JUSTICE ANOOP CHITKARA

CRIMINAL MISC. PETITION (MAIN) U/S 482, Cr.PC

No.52 of 2020

BETWEEN:-

URMILA DEVI

W/O SHRI BIR SINGH
R/O VILLAGE BASSI, P.O, TEHSIL & POLICE STATION
BHORANJ, DISTRICT HAMIRPUR, H.P
AGED 62 YEARS
.... PETITIONER

(BY MR. PAWAN K. SHARMA, ADVOCATE)

AND

1. STATE OF HIMACHAL PRADESH

2. RAMESH CHAND
S/O SHRI TEHKA RAM
3. SMT. FULLAN DEVI
W/O SHRI RAMESH CHAND

BOTH RESIDENTS OF
VILLAGE BASSI, P.O, TEHSIL AND POLICE STATION

BHORANJ, DISTRICT HAMIRPUR
4. GRAM PANCHAYAT BHORANJ
BLOCK BHORANJ, DISTRICT HAMIRPUR, H.P

.... RESPONDENTS

(MR. NAND LAL THAKUR, ADDITIONAL ADVOCATE GENERAL WITH
MR. KUNAL THAKUR, DEPUTY ADVOCATE GENERAL, MR. RAM LAL
THAKUR & MR. SUNNY DHATWALIA, ASSISTANT ADVOCATES
GENERAL FOR R-1 AND 4.

MR. SANJAY SHARMA, ADVOCATE, FOR R-2 AND 3 )

Reserved on 20.8.2021
Delivered on 24.8.2021
__________________________________________________

::: Downloaded on - 31/01/2022 22:56:36 :::CIS
2

This petition coming on for final hearing this day, the Court passed the
following:
JUDGMENT

Challenging the judgment passed by the learned Chief Judicial

Magistrate, Hamirpur in Criminal Appeal No.3 of 2016 filed under Section 67 of the Himachal Pradesh Panchayati Raj Act, 1994, whereby the learned Court after setting

aside the order of Gram Panchayat remanded the matter to the Gram Panchayat for trial, the victim has come up before this Court under Section 482, Code of Criminal Procedure, 1973.

2. On 9.2.2016, based on the complaint of petitioner Urmila Devi, police

registered the FIR captioned above. The complainant informed the police that when she was clearing the mud etc., from the path so that water does not come on it, Ramesh Chand and Fullan Devi, respondents No.2 and 3 herein along with their son

Shashi Pal gave beatings to her. In the meantime, one Rattan Chand arrived at the

spot and separated both the parties. Prima facie, the investigator found that the offences punishable under Sections 323, 341 read with Section 34, IPC was made out against the accused Ramesh Chand and Fullan Devi.

3. Sections 32, 33, 34, 36, 37, 38, 39, 40, 51, 52 and 54 of the H.P. Panchayati Raj Act, 1994 read as follows: -

32. Offences cognizable by Gram Panchayat. -(1) Offences mentioned in Schedule-III or declared by the State Government to be cognizable by a Gram Panchayat, if committed within the jurisdiction of a Gram

Panchayat, and abetment of and attempts to commit such offences shall be cognizable by such Gram Panchayat.

(2) Application for maintenance under section 125 of the Code of

Criminal Procedure, 1973 (2 of 1974), shall be heard and decided by the Gram Panchayat. A Gram Panchayat may grant a maintenance allowance not exceeding five hundred rupees per month on such application without prejudice to any other law for the time being in force in this behalf.

33. Penalties. -A Gram Panchayat may impose a fine not exceeding one hundred rupees but shall not inflict a sentence of imprisonment either substantive or in default of payment of fine.

34. No cognizance by Courts. -No Court shall take cognizance of any case suit or proceeding which is cognizable under this Act by a Gram Panchayat established for the area to which the case, suit or proceeding relates, unless an order has been passed under section 67.

36. Summary disposal of complaint. -A Gram Panchayat may dismiss any complaint, if after examining the complainant and taking such evidence as he produces, it is satisfied that the complaint is frivolous, vexatious or untrue.

37. Return of complaints. -If, at any time, it appears to a Gram Panchayat, -

(a) that it has no jurisdiction to try any case before it; or

(b) that the offence is one for which it cannot award adequate

.

punishment; or

(c) that the case is of such a nature or complexity that it should be tried by a regular court, it shall return the complaint to the complainant directing him to file it before the Magistrate having jurisdiction to try such case.

38. Certain persons not to be tried by the Gram Panchayat. -No Gram Panchayat shall take cognizance of any offence where the accused--

(a) has been previously convicted of an offence punishable with imprisonment of either description for a term of three years or more; or

(b) has been previously fined under section 379 of the Indian Penal

Code (45 of 1860) by any Gram Panchayat or has been previously convicted and sentenced under the said section by a Court; or

(c) has been bound over to be of good behaviour under section 109 or 110 of the Code of Criminal Procedure, 1973 (2 of 1974); or

(d) has been previously convicted of gambling; or

(e) is Government servant and act complained of is the one done in

his official capacity.

39. Compensation to the accused. -If a Gram Panchayat is satisfied after enquiry that a case brought before it was false, frivolous or vexatious, it may order the complainant to pay to the accused such compensation not exceeding two hundred rupees, as it thinks fit.

40. Enquiry in cases forwarded by a Magistrate. - A Magistrate may direct an inquiry to be made under section 202 of the Code of Criminal Procedure, 1973 (2 of 1974), by a Gram Panchayat in any case in which the offence was committed within the territorial jurisdiction of such

Gram Panchayat and the Gram Panchayat shall inquire into the case and submit its report to the said Magistrate.

51. Double jeopardy. -Where a case is pending in any court against an accused person in respect of any offence or where an accused person has been tried for any offence, no Gram Panchayat shall take cognizance of any such offence, or on the same facts, of any other offence, of which the

accused might have been charged or convicted.

52. Concurrent jurisdiction. -Where a case, suit or proceeding is maintainable in more than one Gram Panchayats the plaintiff or the complainant or the applicant, as the case may be, may bring the case, suit or proceeding in any one of such Gram Panchayats. Any dispute regarding jurisdiction shall be decided by the judicial Magistrate, Sub- Judge or the Collector having jurisdiction, as the case may be.

54. Recording of substance of the complaints and application and appointment of benches. -(1) Where a case, suit or a proceeding is instituted orally, the Pradhan or the Up-Pradhan receiving the complaint or application shall record without delay the prescribed particulars and take the signature or thumb impression of the complainant or applicant thereon.

(2) On recording the substance of the complaint or application in the register under sub-section (1) the Pradhan or in his absence the Up- Pradhan, as the case may be, shall, or on a reference by a revenue court concerned, appoint a bench of the Gram Panchayat consisting of three

Panches and refer the said complaint or application to that bench for

disposal and shall also fix a date for the first hearing of the complaint or application before the said bench and give notice of the said date to the complainant or the applicant and to the Panches thereof:

Provided that no Panch, who is a member of the Gram Sabha in the

ward for election to the Gram Panchayat in which ward the place of occurrence of the case lies, or in which ward the cause of action for the suit arose, as the case may be, shall be included on the bench.

(3) On the date fixed for the first hearing of case, suit or proceedings the bench formed under sub-section (2), shall, unless the Pradhan or Up-

Pradhan is a member of it, choose one of the Panches to be the Chairman of that bench to conduct the proceedings and shall take up and hear case, suit or proceedings, as the case may be, in the prescribed manner.

(4) For the purposes of judicial functions, a Gram Panchayat shall include a bench thereof."

4. Rule 51 of The Himachal Pradesh Panchayati Raj (General) Rules, 1997 reads as follows: -

51. Examination of the parties and their witnesses under section 54(3) of the Act.- (1) When hearing a civil suit or a revenue proceeding,

the Gram Panchayat shall first examine the plaintiff or applicant and his witnesses and thereafter the defendant or objector and his witnesses, as the case may be, while trying a criminal case it shall first explain to the accused the charge or charges made against him and shall thereafter

record prosecution evidence and thereafter examine the accused and his defence :

Provided that if in a criminal case an accused makes a clear and voluntary confession of the crime, he may be convicted without recording any evidence and in civil suits or revenue proceedings if the claim of the plaintiff or the applicant is totally admitted by the other

party, it will not be necessary for the Gram Panchayat to record any evidence.

(2) Each party shall be allowed to cross examine another party and their witnesses just after their examination-in-Chief but the Gram Panchayat may, either of its own motion or on the request of any party, examine any person at any stage of the proceedings before passing final orders and in such case party shall be entitled to put question to the person so examined.

(3) Before examining any person, except an accused, a Gram Panchayat shall administer him the following oath or affirmation:- "I shall state the truth and nothing but truth so help me God"

OR "I solemnly affirm that I shall state the truth and nothing but the truth."

5. Sections 323 and 341 of the Schedule-III of Himachal Pradesh Panchayati Raj Act, 1994 read as follows: -

SCHEDULE-III

.

                     OFFENCES COGNIZABLE BY A GRAM PANCHAYAT





    No.       Name of the Act/Code        Offence                                   Section
    18        Indian Penal Code           Voluntarily causing hurt                  323





    20        Indian Penal Code           Wrongfully restraining any person         341

6. Given the mandate of S. 32 of the H.P. Panchayati Raj Act, 1994, for the offences punishable under S. 323 and 341 IPC, only the concerned Gram Panchayat,

in whose jurisdiction the offences were committed, can take cognizance, and none else.

7. Thus, the concerned Gram Panchayat Bhoranj, the 4th respondent, had the

jurisdiction to take the cognizance. However, the flaw starts after this. The question

of the Law involved before this Court proposes whether the mistake of the Panchayat is an Illegality or an Irregularity, and what is the recourse in Law.

8. Per Rule 51 of The Himachal Pradesh Panchayati Raj (General) Rules, 1997, it

is mandatory for every Gram Panchayat undertaking proceedings in a criminal trial to proceed by taking the following steps: (1) First: Explain to the accused the charge or charges made against them;

Second: If the accused make(s) clear and voluntary confession of the crime,

they may be convicted without recording any evidence; otherwise;

Third: Record prosecution evidence, but before examining any person, except an accused, a Gram Panchayat shall administer him the

following oath or affirmation: -

"I shall state the truth and nothing but truth so help me God."

OR "I solemnly affirm that I shall state the truth and nothing but the truth."

Fourth: Examine the accused (Without Oath and without any duress, undue influence, pressure, or force);

Fifth: Examine the defence brought by the accused (If any);

Sixth: Type and print/Write the order, put signatures, and thereafter pronounce it.

(2) Each party shall be allowed to cross examine another party and their witnesses just after their examination-in-Chief but the Gram Panchayat may, either of its own motion or on the request of any party, examine any person at any stage of the proceedings before passing final orders and in such case party

shall be entitled to put question to the person so examined.

9. A perusal of the proceedings of the Panchayat, which had taken place on 6th April 2016, reveals that the Panchayat did not correctly follow the steps as

mentioned in Sr. No. (1) above, and did not follow steps mentioned in Sr. Nos. (2) and (3) at all.

10. In Willie (William) Slaney v. State of M.P., AIR 1956 SC 116, Constitutional Bench of Hon'ble Supreme Court holds as follows:

Vivian Bose J. (On behalf of himself and S. R. Das Actg. C. J.) [32]. We have used the terms "illegality" and "irregularity" because they have required a technical significance and are convenient to demarcate a distinction between two classes of case. They were first used by the Privy Council in 28 Ind App 257 (PC) and repeated in "AIR 1938 PC 130 at pp.

132-133 ' and in 'AIR 1947 PC 67at pp. 69-70 ', but it is to be observed

that the Code does not use the term "illegality". It refers to both classes as "irregularities"; some vitiate the proceedings (section 530) and others do not (section 529). Proceedings that come under the former head are "void". Section 535 uses the words "shall be deemed invalid" which indicate that a total omission to frame a charge

would render the conviction invalid but for section 535 which serves to validate it when that sort of "irregularity" has not occasioned a "failure of justice".

Section 537 does not use any of these expressions but merely says that no

conviction or sentence "shall be reversed or altered" unless there has 'in fact' been a failure of justice.

[33]. We do not attach any special significance to these terms. They are convenient expressions to convey a thought and that is all. The essence of the matter does not lie there. It is embedded in broader considerations of justice that cannot be reduced to a set formula of words or rules. It is a

feeling, a way of thinking and of living that has been crystallized into judicial thought and is summed up in the admittedly vague and indefinite expression "natural justice": something that is incapable of being reduced to a set formula of words and yet which is easily recognisable by those steeped in judicial thought and tradition.

In the end, it all narrows, down to this some things are 'illegal", that is to say, not curable, because the Code expressly makes them so; others are struck down by the good sense of judges who, whatever expressions they may use, do so because those things occasion prejudice and offend their sense of fair play and justice.

When so struck down, the conviction is "invalid"; when not, it is good whatever the "irregularity". It matters little whether this is called an "illegality", an "irregularity" that cannot be cured" or an "invalidity" so long as the terms are used in a clearly defined sense.

S. J. Imam J.

[89]. The framing of a charge in trial of cases in which a charge is required to be framed, is one of the important elements in the mode of a trial. On the charge framed, after it has been explained to the accused the

plea of guilty or not guilty is recorded. If the accused pleads guilty,

certain consequences follow. If he pleads not guilty, the trial must proceed according to law. When a charge is not framed, obviously no plea of the accused with reference to it is taken and the trial has proceeded without such a plea.

Is the framing of a charge and the recording of the plea of the accused merely a ritual or a fundamental provision of the Code concerning procedure in a criminal trial? I think it is the latter. Are the express provisions of the Code as to the manner in which a trial is to proceed to be ignored, or considered as satisfied, merely because the Court

explained to the accused as to what he was being tried for? I apprehend not. For to do so is to replace the provisions of the Code by a procedure unwarranted by the statute itself.

In my opinion, a total absence of a charge from start of finish in a case where the law requires a charge to be framed, is a contravention of the

provisions of the Code as to the mode of trial and conviction of the

accused of an offence is such a case is invalid and the question of prejudice does not arise. None of the decision of the Privy Council suggests that in such a case the conviction will be deemed to be valid by virtue of the provisions of section 535 unless the Court is satisfied that there has been a failure of justice.

[90]. In cases where a charge has been framed and there is an omission or irregularity in it, it is difficult to see how the mode of trial is affected. In any event, the Code expressly provides that in such cases the conviction need not be set aside, unless, in fact, a failure of justice has resulted.

[91]. Under the provisions of section 232 of the Code an appellate Court or a High Court exercising its powers of revision or its powers under

Chapter XXVII, must direct a new trial of case in which an accused person has been convicted of an offence with which he had not been charged, if it is satisfied that he had been misled in his defence by the absence of a charge. In such a case a court is bound to act according to its

provisions. But this does not mean that by virtue of these provisions that which was invalid shall be deemed to be valid, unless, prejudice was shown.

It is the provisions of section 535 to which reference must be made in order to ascertain whether that which was invalid shall be deemed to be valid, unless the court was satisfied that there had been a failure of justice. I regard with concern, if not with dismay, a too liberal application of its provisions to all cases in which there is an absence of a charge, although a charge ought to have been framed. It is difficult to lay down any hard and fast rule as to when the provisions of section 525 will or will not be applicable.

The facts of each case, as they arise, will have to be carefully considered in order to decide that which was 'prima facie' invalid is deemed to be valid by virtue of its provisions. There may be cases where the omission

to frame a charge was merely a technical defect in which case section 535 would apply. On the other hand, there may be cases where failure to frame a charge affects the mode of trial or it is such a substantial contravention of the provisions of the Code relating to the framing of

charges that prejudice may be inferred at once and the conviction which

was 'prima facie' invalid continued to be so.

In a criminal trial innocence of an accused is presumed, unless there is a statutory presumption against him, and the prosecution must prove the accused is guilty of the offence for which he is being tried. The

prosecution is in possession of all the evidence upon which it relies to establish its case against the accused. It has the privilege to ask the Court to frame charges with respect to the offence which it wishes to establish against the accused.

N. Chandrasekhara Aiyar, J, (On behalf of himself and B.

Jagannadhadas J.):

[79]. After all, in our considering whether the defect is illegal or merely irregular, we shall have to take into account several factors, such as the form and the language of the mandatory provisions, the scheme and the

object to be achieved, the nature of the violation, etc. Dealing with the question whether a provision in a statute is mandatory or directory, Lord

Penzance observed in - 'Howard v. Bondington', 1877-2 PD 203. "There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to the subject-matter to which they refer, as that the

legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the court would take an opposite view, and would feel that they are matters which must be

strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end."

These words can be applied 'mutatis matandis' to cases where there is no

charge at all. The gravity of the defect will have to be considered to determine if it falls within one mistake in procedure or is it substantial and vital? The answer will depend largely on the facts and circumstances

of each case.

If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lessor degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.

[80]. This judgment should not be understood by the subordinate courts as sanctioning a deliberate disobedience to the mandatory requirements of the Code, or as giving any license to proceed with trials without an appropriate charge. The omission to frame a charge is a grave defect and should be vigilantly guarded against. In some cases, it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted.

In the main, the provisions of section 535 would apply to cases of inadvertence to frame a charge induced by the belief that the matter on record is sufficient to warrant the conviction for a particular offence

without express specification, and where the facts proved by the prosecution constitute a separate and distinct offence but closely relevant to and springing out of the same set of facts connected with the one charged.

11. It is the prosecution that possesses all the evidence it relies on establishing its case against the accused. Based on this evidence, it has the privilege to ask the Court to frame charges for the offence it wishes to establish against the accused. Thus, in a

criminal trial, the innocence of an accused is presumed unless there is a statutory presumption against him. The prosecution must prove the accused is guilty of the offence for which he is being tried.

12. Paramount considerations are whether the gravity of the defect mistake in the procedure is substantial and vital? The answer will depend mainly on the facts and circumstances of each case, which will have to be carefully considered to decide that

which was prima facie invalid is deemed to be valid by application of legal

provisions. If the seriousness of the omission is of a lesser degree, it will be an irregularity, and prejudice by way of failure of justice will have to be established. It is so grave that prejudice will necessarily be implied or imported; it may be

described as illegality.

13. An Illegality cannot be cured, whereas an irregularity can be cured. When

because of the legal stipulations, something is illegal, it would continue to remain illegal and uncurable. Thus, even those convictions that cannot be cured become

invalid. However, if the accused establishes that such a cure is likely to prejudice and offend their sense of fair play and justice, then even an irregularity cannot be cured.

And the Court must be satisfied that there had been a failure of justice.

14. The Latin phrase, Intentio inservire debet legibus, non leges intentioni, means intention ought to be subservient to the laws, not the laws to the intention.

15. In State of Uttar Pradesh v. Singhara, AIR 1964 SC 358, a three-Judge bench of Hon'ble Supreme Court holds, [8] The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.

16. In D.R. Venkatachalam and others v. Dy. Transport Commissioner and others, (1977) 2 SCC 273, a three Judge bench of Hon'ble Supreme Court holds, [17] In ultimate analysis, the rule of construction relied upon by Mr.

Chitaley to make the last mentioned submission is: "Expressio uniusest

exclusio alterius." This maxim, which has been described as "a valuable servant but a dangerous master" (per Lopes J., in Court of Appeal in Colquhoun v. Brooks, (1888) 21 QBD 52 at 65 finds expression also in a

rule, formulated in Taylor v. Taylor, (1875) 1 Ch D 426 at p. 430 applied by the Privy Council in Nazir Ahmad v. King Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2)) which has been repeatedly adopted by this Court. That rule says that an expressly laid down mode of doing something necessarily implies a prohibition of doing it in any other way.

17. In Sharif-Ud-Din v. Abdul Gani Lone, (1980) 1 SCC 403, Hon'ble Supreme Court holds, [9] The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter,

substantial compliance may be sufficient to achieve the object regarding

which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statue uses the word 'shall' while laying down a duty is not conclusive

on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to

be defeated by noncompliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public

duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a

provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.

18. In Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, a three-Judge bench of Supreme Court holds, [34] The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was

introduced. Rule 3 said "the court shall in all cases, except where it

appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite-party". The proviso was

introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background,

the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a

statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the

proviso has been followed. The partywhich invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in

the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are

required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular

procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far- reaching effect, as such a condition has been imposed that court must

record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor and Nazirahmed v. Emperor. This court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare.

19. In Chandra Kishore Jha v. Mahavir Prasad, 1999 (8) SCC 266, a three- Judge bench of Hon'ble Supreme Court holds,

[17] ...It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. See with advantage: Nazir Ahmad v. King Emperor, 63 Ind App 372: AIR 1936 PC 253 (2); Rao Shiv Bahadur

Singh v. State of Vindhya Pradesh, 1954 SCR 1098: AIR 1954 SC 322;

State of Uttar Pradesh v. Singara Singh, AIR 1964 SC 358: (1964) 1 SCWR 57...

20. In Chief Information Commissioner v. State of Manipur, 2011 (15) SCC 1,

Hon'ble Supreme Court holds, [40] ... It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. It is a time honoured principle as early as

from the decision in Taylor v. Taylor,1876 1 Ch 426 that where statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. This principle has been followed by the Judicial Committee of

the Privy Council in Nazir Ahmad v. Emperor, 1936 AIR(PC) 253 and also by this Court in Deep Chand v. State of Rajasthan, 1961 AIR(SC)

1527 and also in State of U.P. v. Singhara Singh, 1964 AIR(SC) 358.

21. In State through Police Station, Lodhi Colony, New Delhi v. Sanjeev Nanda, 2012 (8) SCC 450, Hon'ble Supreme Court holds,

[28] It is a settled principle of law that if something is required to be done in a particular manner, then that has to be done only in that way or not, at all. In Nazir Ahmad Vs. King Emperor, 1936 AIR(PC) 253it has been held as follows:

"......The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain

way the thing must be done in that way or not at all. ......"

22. In Selvi Jayalalithaa v. State of Karnataka, 2014 (2) SCC 401, Hon'ble

Supreme Court holds, [34] ...There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible.

23. In Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh, 2015 (13) SCC 722, Hon'ble Supreme Court holds, [14] Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner

following the provisions of law, without deviating from the prescribed

procedure...

24. Perusal of the Panchayat's record reveals that it did not conduct the

proceedings in the way the Legislature has prescribed through the Himachal Pradesh Panchayati Raj Act, 1994 and Rule 51 of 'The Himachal Pradesh Panchayati Raj (General) Rules, 1997'. The Panchayat cannot deviate from the procedure prescribed by the law mentioned above.

25.

The Panchayats are directed to conduct the proceedings following the 'Himachal Pradesh Panchayati Raj Act, 1994' and Rule 51 of 'The Himachal Pradesh

Panchayati Raj (General) Rules, 1997'.

26. There is no infirmity or illegality in the impugned order passed by Ld. Chief Judicial Magistrate, Hamirpur, in in Criminal Appeal No.3 of 2016. Given above the Panchayat shall hold the proceedings from the beginning following the procedure

established by law. Since the matter is quite old, as such this Court requests the Panchayat to take up this matter on top priority. The petition is disposed in aforesaid terms. All pending applications closed.

27. Registry to send a copy of the order to the Secretary of Gram Panchayat

Bhoranj, Block Bhoranj, District Hamirpur, H.P, for compliance.

Petition closed.

(Anoop Chitkara) Judge 24.8.2021 (mamta).